Oregon PDMP v. U.S. DEA

ACLU Files in Court to Protect Privacy of Drug Prescriptions

ACLU Challenging Government Efforts to Access Confidential Records Without a Warrant

January 25, 2013 - Portland - The American Civil Liberties Union and the ACLU of Oregon filed a complaint in court today challenging the federal Drug Enforcement Administration's (DEA) claim that it can access Oregonians' private prescription records in a state database without a warrant. In November, the State of Oregon sued the DEA in federal court to prevent the agency from circumventing a state law requiring a warrant for such access, and today the ACLU filed a motion to intervene in the case on behalf of several patients and a doctor whose prescription records are in the database.

In 2009, Oregon enacted legislation to create the Oregon Prescription Drug Monitoring Program (PDMP), which records information on millions of prescriptions for Oregon patients. The database tracks prescriptions needed to treat chronic and acute pain, anxiety and panic disorders, weight loss associated with AIDS, Attention Deficit Hyperactivity Disorder, and other conditions.

In order to safeguard the privacy and security of these records, the Oregon law includes a prohibition against PDMP releasing records to any federal, state or local law enforcement official without a warrant based on probable cause. However, the DEA has been issuing the PDMP administrative subpoenas, which do not involve a judge, seeking prescription records of patients and physicians. The State of Oregon believes that complying with the subpoenas will put the PDMP in the position of violating Oregon law, so it has asked a federal judge to clarify whether the federal regulation used by the DEA preempts state law.

“Oregon law and the U.S. Constitution clearly require the DEA to get a warrant just like any other law enforcement agency,” said David Fidanque, Executive Director of the ACLU of Oregon. “The ACLU opposed the creation of the Oregon prescription database precisely because we are concerned with protecting the privacy of patients and doctors who have done nothing wrong. The Legislature agreed to add the search warrant requirement to partially address that concern.”

The ACLU clients seeking to intervene in the state’s lawsuit include the ACLU of Oregon, on behalf of the patients and physicians among its approximately 11,000 members whose prescription records are contained within the PDMP and who object to the DEA accessing those records without a warrant. The ACLU also represents four patients and one physician who are using pseudonyms in the lawsuit to protect their privacy. Each of the patient-clients takes medications prescribed by their physicians that are appropriate for their medical conditions and are schedule II, III or IV drugs under the Controlled Substance Act. The physician-client specializes in internal medicine, geriatrics, and hospice care.

The case is Oregon PDMP v. U.S. DEA in the U.S. District Court for the District of Oregon. The attorneys in the case are Ben Wizner and Nathan Wessler of the ACLU Speech, Privacy and Technology Project, and Kevin Díaz of the ACLU Foundation of Oregon.